Since Straus Derangement Syndrome is back in full force over his remarks about the so-called "groping bill" I thought I might provide a few facts. Well, actually, all of the facts. If you want to know the truth about the changes that Speaker Straus demanded be placed in the House version of the bill, you are going to have to read the actual amendments, as recorded in the House Journal. I'm going to make it real easy for you – you won't even have to click away:
HB 41 ON SECOND READING
(by Simpson, et al.)
HB 41, A bill to be entitled An Act relating to prosecution and punishment for the offense of official oppression by the intrusive touching of persons seeking access to public buildings and transportation; providing penalties.
Amendment No. 1
Representative Simpson offered the following amendment to HB 41:
Amend HB 41 (house committee printing) as follows:
(1) On page 1, line 8, strike "and (c-3)" and substitute "(c-3), (c-4), and (c-5)".
(2) On page 2, line 2, between "a" and "search", insert "constitutionally unreasonable".
(3) On page 2, line 5, strike the colon and substitute ", and in violation of the United States Constitution, touches the sexual organ, breast, buttocks, or anus of the other person, including touching through clothing.".
(4) On page 2, strike lines 6-11.
(5) On page 3, lines 3 and 4, strike "with an explicit and applicable grant of federal statutory authority that is consistent".
(6) On page 3, between lines 16 and 17, insert the following:
(c-4) It is a defense to prosecution for a person described by Subsection (c-1)(1) or (2) that a reasonable person in the defendant's position would have believed the defendant's conduct to be lawful.
(c-5) This section shall be construed, as a matter of state law, to be enforceable up to but no further than the maximum possible extent consistent with federal constitutional requirements, even if that construction is not readily apparent, as such constructions are authorized only to the extent necessary to save the section from judicial invalidation. If any court determines that a provision of this section is unconstitutionally vague, the court shall interpret the provision, as a matter of state law, to avoid the vagueness issue and shall enforce the provision to the maximum possible extent.
(7) On page 4, strike lines 12-17.
(8) On page 4, line 18, strike "SECTION 4" and substitute "SECTION 3".
Amendment No. 1 was adopted.
Amendment No. 2
Representatives Fletcher and S. Miller offered the following amendment to HB 41:
Amend HB 41 (house committee report) on page 1, line 24, through page 2, line 1, by striking "probable cause to believe the other person committed an offense" and substituting "reasonable suspicion of the presence of an unknown, unlawful, or prohibited object".
AMENDMENT NO. 2 – STATEMENT OF LEGISLATIVE INTENT
REPRESENTATIVE BRANCH: Is it your understanding, based on a conversation we had a few minutes ago, that this is the position of the final change requested by the Texas Association of District and County Attorneys?
REPRESENTATIVE FLETCHER: Yes, sir, it is.
BRANCH: And by putting this reasonable suspicion language in, and the additional words that you read out that are now in the bill, that they're now agreed to this language?
FLETCHER: Yes, sir, they are.
Amendment No. 2 was adopted.
HB 41 – STATEMENT OF LEGISLATIVE INTENT
REPRESENTATIVE BRANCH: Mr. Simpson, your amendment as amended by Mr. Fletcher includes not only now the earlier comments of May 21, but also today's comments by the Association of District and County Attorneys, as well as a letter we've received from the Office of the Attorney General, today, this afternoon.
REPRESENTATIVE SIMPSON: Yes, sir.
BRANCH: Were they signed off on all the changes you have made to the bill since Friday?
SIMPSON: Yes. Most of these were made before then, but yes.
BRANCH: And so now, you've walked through the bill, and cleaned up the language, and amended it from what we had before us on Friday, Thursday and Friday of last week?
SIMPSON: There are some changes, yes.
BRANCH: At least in the terms of the Office of the Attorney General, and the Association of District and County Attorneys, that these were significant, important changes, legal changes, that will make your bill easier to defend in court, is that correct?
SIMPSON: Yes, all those changes were basically in there Friday, and we added one thing, Representative Fletcher's amendment, that they just requested.
BRANCH: I want to thank you for working with those two groups to improve this legislation.
SIMPSON: Thank you, Representative Branch, for all your assistance and guidance in getting this to this point.
REPRESENTATIVE LEWIS: I think it's clear, but I just want to make sure of this, also. The part of your original bill that if one intentionally, knowing, or directly causes physical contact with a person when the actor knew that it would be perceived as offensive or provocative, that's out now, correct?
SIMPSON: No, that's both specific language and general language in the bill.
LEWIS: All right, sir. Well, let me ask this. Is it still part of the offense if one intentionally, knowingly, or directly causes physical contact with the other person when the actor knows, or should reasonably believe, that the other person regards the contact as offensive or provocative? Is that still in the bill? I thought that was amended out.
SIMPSON: No, that's in the bill, and that's what has been reviewed by the attorney general, by the DA and CA association.
LEWIS: In what degree of crime is this to do that?
SIMPSON: This is a Class A misdemeanor.
Amendment No. 3
Representative Gallego offered the following amendment to HB 41:
Amend HB 41 (house committee report) by adding the following appropriately numbered SECTION to the bill and renumbering the remaining SECTIONS of the bill accordingly:
SECTION ____. The legislature recognizes the tremendous role of law enforcement agencies in protecting the public. It is the intent of the legislature that the people of this state and each law enforcement agency serving this state have access to the highest and best technology so that each search performed for the purpose of granting access to a publicly accessible building or form of transportation is accomplished in the most efficient and least intrusive manner possible while maintaining the safety of the public and the integrity of the building or form of transportation.
Amendment No. 3 was adopted.
AMENDMENT NO. 1 – STATEMENT OF LEGISLATIVE INTENT
REPRESENTATIVE LEWIS: Just to go back to this again for clarification purposes—the amendment that you have does take out that language that just the physical contact that might be considered as offensive, that part is now deleted by the amendment, is that correct?
REPRESENTATIVE SIMPSON: By the amendment, that's correct.
REMARKS ORDERED PRINTED
Representative Branch moved to print remarks between Representative Simpson and Representative Lewis and between Representative Simpson and Representative Branch.
The motion prevailed.
HB 41, as amended, was passed to engrossment.
There you go. You'll see that there are no "bogeymen", nothing nefarious, no "gutting" of the bill, just changes requested by Attorney General Abbott and other law enforcement personnel that will make the bill more defensible in court. If prima donna Rep. David Simpson had inserted these changes Friday, Speaker Straus wouldn't have had to take him to the woodshed to explain that the votes weren't there and his colleagues wanted these changes. No sense wasting taxpayer money defending an undefensible bill.
Now the problem is Sen. Dan Patrick – rather than accept these changes, he had the Senate pass his own version in an effort to keep his name in the press as he prepares for a low-budget run for the U.S. Senate.
Lawdy I wish people would take the time to ask around and find out what is happening in Texas politics before they started shooting off their mouths and keyboards.
David, I find CLEAT's statement that "a "probable cause" standard would unduly restrict law enforcement searches" priceless.
Can't have constitutional language messing with efficient 'enforcement' now, can we?
I don't expect this will come back as more folks will simply accept that they will drop trou at any time, at any place, for any reason, or for no reason at all, at the command of any actor in a state issued costume.
Congress could fix it. Congress will not. Every congressman is up for election next year, deal accordingly.
The Supreme Court has held that law-enforcement officers can stop and frisk someone based not on probable cause, but on reasonable suspicion. It's called a Terry stop after Terry v. Ohio.
A state law that purported to restrict federal law enforcement officers from conducting an otherwise legal search like a Terry stop would almost certainly run into legally insurmountable obstacles. Your problem isn't CLEAT or the Texas House; it's the Supreme Court.